ULYANOV AND OTHERS v. RUSSIA - 22486/05 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2016] ECHR 157 (09 February 2016)

In the case of Ulyanov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helena Jäderblom, President,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Mariaelena Tsirli, Deputy Section Registrar,

Having deliberated in private on 19 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in eleven applications (nos. 22486/05, 40959/05, 18279/07, 61921/08, 3960/09, 7716/09, 5608/09, 10192/09, 13746/09, 28951/09 and 52614/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Russian nationals. The application numbers, the dates of lodging the applications and the dates of their communication, the applicants’ names, their personal details and the names of their legal representatives, as well as the information concerning the relevant domestic judgments, are set out in the Appendix.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants each alleged that they had been convicted of drug offences following entrapment by the police in violation of Article 6 of the Convention. Mr Dimitriyev and Mr Dymov (applications nos. 7716/09 and 28951/09) also complained under Article 6 §§ 1 and 3 (d) of the Convention that they had not been able to examine witnesses against them.

4. On the dates indicated in the Appendix the applications were communicated to the Government and were assigned to a Committee of three judges.

5. On 2 November 2008 Mr Ulyanov (application no. 22486/05) died. In a letter of 3 September 2009 the applicant’s mother, Ms Ulyanova, expressed her wish to pursue the application on her late son’s behalf.

6. On 21 May 2011 Mr Kodola (application no. 3960/09) died. In a letter of 14 July 2012 the applicant’s mother, Ms Kodola, expressed her wish to pursue the application on her late son’s behalf.

7. In letters of 5 November 2009 and 14 August 2012 respectively the Government disagreed, stating that the proceedings before the Court in respect of Mr Ulyanov and Mr Kodola should be discontinued because of their death, and that their relatives did not have a sufficient legitimate interest to justify further examination of the cases.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal convictions for drug dealing.

9. The applicants disagreed with their convictions and argued that the police had incited them to commit drug-related offences.

II. RELEVANT DOMESTIC LAW

10. The relevant domestic law governing the use of undercover operations at the material time is summed up in the Court’s judgments in the cases of Lagutin and Others v. Russia (nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, 24 April 2014); Veselov and Others v. Russia (nos. 23200/10, 24009/07 and 556/10, 2 October 2012); Bannikova v. Russia (no. 18757/06, 14 October 2010); Vanyan v. Russia (no. 53203/99, 15 December 2005); and Khudobin v. Russia (no. 59696/00, ECHR 2006-XII (extracts)).

THE LAW

I. LOCUS STANDI OF MR ULYANOV AND MR KODOLA (applications nos. 22486/05 and 3960/09)

11. The Court takes note of the deaths of Mr Ulyanov and Mr Kodola and of the wish of their heirs to pursue the proceedings they had initiated.

12. The Court reiterates that where an applicant dies during the examination of a case, his or her heirs may in principle pursue the application on his or her behalf (see Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000-IX). It further reiterates that in a number of cases in which applicants have died in the course of the proceedings, it has taken into account the statements of their heirs or close family members expressing their wish to pursue the proceedings before the Court (see Latif Fuat Öztürk v. Turkey, no. 54673/00, § 27, 2 February 2006, and Hanbayat v. Turkey, no. 18378/02, § 20, 17 July 2007). In the present case, the Court considers that apart from explicitly expressing their wish to do so, the applicants’ heirs have a sufficient legitimate interest in pursuing the proceedings on their behalf, given that the complaints brought by Mr Ulyanov and Mr Kodola concern the defects identified previously by the Court in Russian law and practice on undercover operations (see Veselov and Others, §§126-27, cited above) and as such, they transcend the individual interest of the applicants’ cases.

13. The Court therefore considers that Mr Ulyanov’s and Mr Kodola’s heirs have standing to continue the present proceedings in the applicants’ stead. Accordingly, it rejects the Government’s objection that the proceedings should be discontinued.

II. JOINDER OF THE APPLICATIONS

14. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical issues under the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

15. The applicants complained that they had been unfairly convicted of drug offences which they had been incited by the police to commit and that their plea of entrapment had not been properly examined in the domestic proceedings, in violation of Article 6 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

1. Application by Mr Ivantsov (application no. 10192/09)

(a) Submissions by the parties

16. The Government submitted that Mr Ivantsov could no longer claim to be a victim of the alleged violation. In particular, the Government argued that the domestic courts had reopened the criminal proceedings in his case and reduced the sentence imposed on him for the first incident involving the sale of drugs. The domestic courts had also quashed the applicant’s conviction in relation to the two remaining incidents, which had taken place after the first test purchase.

17. Mr Ivantsov acknowledged that the domestic courts had re-examined his case in his favour in the new proceedings. However, he argued that the domestic courts had not properly addressed his pleas of entrapment and as a result, the conviction for the first drug sale had remained in force. Therefore, he had not lost his status as a victim of the alleged violation.

(b) The Court’s assessment

18. The Court notes that it has already considered identical issues of the loss of victim status in recent Russian cases concerning entrapment. The Court held that the applicants, who had been convicted of drug dealing and whose criminal cases were later re-examined by the domestic courts, had not ceased to be victims of the alleged violation of the Convention, owing to the fact that the re-examination of their criminal cases had not been effective and in conformity with the requirements of Article 6 of the Convention and the case-law of the Court (see Lebedev and Others v. Russia, nos. 2500/07, 43089/07, 48809/07, 52271/07 and 54706/07, §§ 12-16, 30 April 2015, and Yeremtsov and Others v. Russia, nos. 20696/06, 22504/06, 41167/06, 6193/07 and 18589/07, §§ 17-21, 27 November 2014).

19. In particular, in the case of Yeremtsov and Others (cited above) the Court found that during the re-examination of the applicants’ cases, the domestic courts had simply reiterated the reasoning of the first-instance court in relation to the first incident and had held that only the remaining incidents involving the sale of drugs had amounted to entrapment because they had not pursued a legitimate goal, such as the detection and prevention of crime. The domestic courts had not examined the main issue raised in the applicants’ complaints, namely, that the police had not had a valid reason to mount any of the undercover operations and that they had wrongfully incited the applicants to sell drugs. They had not requested any evidence concerning the substance of the incriminating information from the police operation and had simply accepted the uncorroborated statements of police officers to that effect (ibid., §§ 18-19).

20. Turning to the facts of Mr Ivantsov’s application, the Court observes that, similarly to the applicants in the cases of Lebedev and Others and Yeremtsov and Others (both cited above), the applicant in the present case has not lost his victim status. The re-examination of his criminal cases by the domestic courts was conducted in the same manner as the re-examination of the applicants’ cases in Lebedev and Others and Yeremtsov and Others (ibid.,) and it does not appear to have been effective. The domestic courts in the present case did not consider the arguments which lay at the heart of the applicant’s complaints of entrapment and as such, similarly to the domestic courts in the cases of Lebedev and Others and Yeremtsov and Others (ibid.,) they were not in a position to assess whether any violation of the applicant’s Article 6 rights had occurred in the course of undercover operations. Thus, although the outcome of the re-examination of the applicant’s case was favourable to him, it nevertheless fell short of the standards developed in the Court’s case-law in the light of Article 6 of the Convention (see Lebedev and Others and Yeremtsov and Others, both cited above, §§ 12-16 and §§ 17-19, respectively).

21. Having regard to the above, the Court dismisses the Government’s objection as to the loss of victim status by Mr Ivantsov and finds that he remains a victim of the alleged violation of Article 6 of the Convention.

2. Application by Mr Fateyev (application no. 61921/08)

22. The Government claimed that Mr Fateyev had not made an entrapment plea before the domestic courts.

23. The applicant disagreed, pointing out that he had made a plea of entrapment in the first-instance hearing and before the appeal court.

24. Having examined the applicant’s case file, the Court finds that the court records and the grounds of appeal contain sufficiently clear and specific allegations by the applicant that the offences at issue were the result of police entrapment. Moreover, it is clear from these documents, as well as from the respective judgments, that these complaints were understood by the domestic courts as such, but were dismissed. Consequently, the Court concludes that the applicant’s complaint was brought to the attention of the domestic courts competent to deal with it and dismisses the Government’s objection in this respect.

3. Conclusion

25. The Court also finds that the complaints concerning entrapment by the police brought by all eleven applicants under Article 6 § 1 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

26. The Government claimed that the test purchases conducted in each of the present cases had been lawful and had not involved any entrapment by the police. They maintained that the police had ordered the test purchases on the basis of incriminating confidential information and that the applicants had voluntarily agreed to sell drugs. They also submitted that the applicants had had their cases reviewed by the domestic courts and that they had been provided with the necessary procedural safeguards in the course of the proceedings.

27. The applicants claimed that the police had not had any reason to mount undercover operations and that the actions of the police had amounted to entrapment. They further argued that the domestic courts had not properly examined their allegations that the offences they were charged with had been incited by the police.

28. The Court reiterates that the absence in the Russian legal system of a clear and foreseeable procedure for authorising test purchases remains a structural problem which exposes applicants to arbitrary action by the police and prevents the domestic courts from conducting an effective judicial review of their entrapment pleas (see Lagutin and Others, § 134, and Veselov and Others, §§ 126-27, both cited above). The present case is identical to other Russian cases on entrapment, in which the Court has consistently found violations on account of the deficiencies in the existing procedure for the authorisation and administration of test purchases of drugs (see Lebedev and Others; Yeremtsov and Others; Lagutin and Others, Veselov and Others; Vanyan; and Khudobin, all cited above).

29. Accordingly, the Court finds no reason to depart from its earlier findings on the matter and holds that the criminal proceedings against all eleven applicants were incompatible with the notion of a fair trial. Having regard to its well-established case-law on the subject, the Court considers that there has been a violation of Article 6 of the Convention with regard to each of the eleven applicants.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE CONVENTION

30. Mr Dimitriyev and Mr Dymov (application nos. 7716/09 and 28951/09) also complained that they had not been able to examine witnesses against them. In particular, Mr Dimitriyev claimed that Ms I. who had bought drugs from him was not questioned in court. Mr Dymov claimed that the court did not question police officer D. who was in charge of the undercover operation. They relied on Article 6 § 3 (d) of the Convention. The Government alleged that the whereabouts of witness in Mr Dimitriyev’s case were unknown and submitted no comments concerning the absent witness in Mr Dymov’s case.

31. The Court has previously held that the right to examine or have examined witnesses whose testimony may be relevant for the evaluation of an entrapment plea is one of the guarantees against the abuse of powers in undercover operations (see Lagutin and Others, § 101, and Bannikova, § 65, both cited above). It therefore considers that this complaint is linked to the one examined above and concerns the proceedings which the Court has found to have been unfair. It accordingly declares the complaint admissible.

32. However, having regard to its findings relating to Article 6 § 1 of the Convention (see paragraphs 26 - 29 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 3 (d) of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

33. Lastly, the applicants raised additional complaints with reference to various Articles of the Convention. The Court has examined these complaints as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

1. Non-pecuniary damage

35. The applicants claimed the following amounts in respect of non-pecuniary damage:

- Mr Ulyanov - 20,000 euros (EUR);

- Mr Urmantsev - EUR 219,150;

- Mr Afishin - EUR 200,000;

- Mr Fateyev - EUR 60,000;

- Mr Kodola - EUR 200,000;

- Mr Salikhov - EUR 5,000;

- Mr Dimitriyev - EUR 70,000;

- Mr Ivantsov - EUR 250,000;

- Mr Fedorov - EUR 10,000;

- Mr Dymov - EUR 7,000;

- Mr Malashkin - EUR 8,000.

36. The Government alleged that Mr Ulyanov had not submitted a claim for just satisfaction. As regards the other applicants, the Government considered that the finding of a violation, if any, would constitute sufficient just satisfaction. They submitted, in the alternative, that the applicants’ claims in respect of non-pecuniary damage were excessive and unreasonable.

37. The Court considers that in the present case an award of just satisfaction must take account of the fact that the applicants did not have a fair trial because they were convicted of drug offences incited by the police in violation of Article 6 of the Convention. They undeniably sustained non-pecuniary damage as a result of the violation of their rights. However, the sums claimed by the applicants appear to be excessive. Making its assessment on an equitable basis, the Court awards EUR 3,000 to each of the applicants in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

2. Pecuniary damage

38. Mr Kodola claimed EUR 35,000, Mr Salikhov claimed 1,475,670 Russian roubles (RUB) (about EUR 21,000) and Mr Fateyev claimed EUR 7,500 in respect of pecuniary damage.

39. The Government submitted that the applicants had failed to substantiate their claim in respect of pecuniary damage.

40. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by Mr Kodola, Mr Salikhov and Mr Fateyev. It therefore rejects their claim in respect of pecuniary damage.

B. Costs and expenses

1. Mr Afishin (application no. 18279/07)

41. Mr Afishin left the determination of the amount to be awarded for costs and expenses incurred by his lawyer to the Court’s discretion. He submitted no receipts in support of his claim.

42. The Government replied that the applicant had not submitted any proof of the costs and expenses he had incurred.

43. According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Khoroshenko v. Russia [GC], no. 41418/04, § 159, ECHR 2015). In the present case, taking into account the documents in its possession, the Court will not make any award to Mr Afishin under this head.

2. Mr Fateyev, Mr Kodola and Mr Dymov (applications nos. 61921/08, 3960/09 and 28951/09)

44. Mr Fateyev claimed RUB 180,000 (about EUR 2,400), Mr Kodola claimed RUB 98,144 (about EUR 1,300) and Mr Dymov claimed RUB 214,621 (about EUR 3,000) for costs and expenses incurred in the domestic proceedings and the proceedings before the Court. They submitted detailed receipts in support of their claim.

45. The Government submitted that the applicants had failed to substantiate their claim for costs and expenses.

46. Regard being had to its case-law (see paragraph 43 above) and the documents in its possession, the Court awards EUR 2,400 to Mr Fateyev, EUR 1,300 to Mr Kodola and EUR 3,000 to Mr Dymov in compensation for the costs and expenses they incurred.

3. Mr Salikhov (application no. 5608/09)

47. Mr Salikhov claimed RUB 43,000 or EUR 1,000 in legal costs and expenses. He submitted receipts amounting to RUB 15,740.70 (about EUR 213).

48. The Government submitted that the applicant’s claim for costs and expenses was unsubstantiated.

49. Regard being had to its case-law (see paragraph 43 above), the documents in its possession and to the fact that the applicant was granted legal aid amounting to EUR 850 from the Court, the Court will not make any award to Mr Salikhov in respect of costs and expenses.

4. Mr Fedorov (application no. 13746/09)

50. Mr Fedorov claimed RUB 40,000 (about EUR 580) for costs and expenses incurred in the domestic proceedings and provided no receipts in support of his claim. He further claimed EUR 2,400 for costs and expenses incurred before the Court and submitted detailed receipts.

51. The Government submitted that the applicant’s claim for costs and expenses was unsubstantiated.

52. Regard being had to its case-law (see paragraph 43 above), the documents in its possession and to the fact that the applicant was granted legal aid amounting to EUR 850 from the Court, the Court awards EUR 1,550 to Mr Fedorov under this head.

C. Default interest

53. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Holds that Ms Ulyanova and Ms Kodola, respectively, have standing to pursue the present proceedings in Mr Ulyanov’s and Mr Kodola’s stead;

2. Decides to join the applications;

3. Declares the complaints concerning the applicants’ conviction for criminal offences that were incited by the police and Mr Dimitriyev’s and Mr Dymov’s complaints regarding the examination of witnesses admissible and the remainder of the applications inadmissible;

4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all the applicants;

5. Holds that there is no need to examine Mr Dimitriyev’s and Mr Dymov’s complaints under Article 6 § 3 (d) of the Convention;

6. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,400 (two thousand four hundred euros) to Mr Fateyev; EUR 1,300 (one thousand three hundred euros) to Mr Kodola; EUR 3,000 (three thousand euros) to Mr Dymov; and EUR 1,550 (one thousand five hundred and fifty euros) to Mr Fedorov in respect of costs and expenses, plus any tax that may be chargeable to the applicants on those amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 9 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Helena Jäderblom
Deputy Registrar President

APPENDIX

No.	Application No.	Dates of introduction and communication	Applicant’s name, date of birth and place of residence	Represented by	Final judgment
1.	22486/05	30/05/2005 01/04/2009	Vasiliy Ivanovich ULYANOV 11/12/1979 Moscow	Valerian Vasilyevich CHERNIKOV	Moscow City Court, 25 April 2006
2.	40959/05	27/10/2005 27/08/2010	Florit Farvazovich URMANTSEV 13/11/1976 Salavat, Republic of Bashkortostan	Ayzat Minnakhmatovich ISHIMGULOV	Supreme Court of the Republic of Bashkortostan, 13 September 2005
3.	18279/07	27/02/2007 12/10/2009	Denis Aleksandrovich AFISHIN 18/10/1982 Saratov	Olga Olegovna MIKHAYLOVA	Saratov Regional Court, 23 November 2006
4.	61921/08	26/11/2008 25/11/2010	Sergey Viktorovich FATEYEV 31/05/1988 Velikovechnoye, Krasnodar Region	Nikolay Arkadyevich DYACHENKO	Krasnodar Regional Court, 16 July 2008
5.	3960/09	15/12/2008 25/11/2010	Vladislav Sergeyevich KODOLA 30/05/1979 Moscow	Aleksey Nikolayevich SHULGIN	Moscow City Court, 7 July 2008
6.	5608/09	13/01/2009 16/01/2013	Ruslan Magomedrasulovich SALIKHOV 05/08/1982 Mamedkala, Republic of Dagestan	Khidirnabi Yakhyayevich SHABANOV	Military Court of the Northern Caucasus District, 24 July 2008
7.	7716/09	12/11/2008 13/11/2012	Yuriy Vasilyevich DIMITRIYEV 08/07/1958 Novotroitsk, Orenburg Region	Sergey Ivanovich KIRYUKHIN	Orenburg Regional Court, 26 June 2008
8.	10192/09	29/01/2009 24/01/2013	Aleksey Vladimirovich IVANTSOV 16/06/1983 Severnyy, Ulyanovsk Region		Ulyanovsk Regional Court, 27 March 2013 (reopened proceedings)
9.	13746/09	27/01/2009 13/11/2012	Mikhail Ivanovich FEDOROV 04/12/1982 Staroye Rakhino, Novgorod Region	Oksana Vladimirovna PREOBRAZHENSKAYA	Novgorod Regional Court, 7 October 2008
10.	28951/09	11/02/2009 25/11/2010	Oleg Igorevich DYMOV 11/02/1990 Stavropol		Stavropol Regional Court, 10 August 2011 (reopened proceedings)
11.	52614/09	25/08/2009 25/11/2010	Igor Aleksandrovich MALASHKIN 01/04/1975 Krasnoyarsk		Krasnoyarsk Regional Court, 24 December 2009

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